“Bauer also will play that role for Obama’s new political network, Organizing for America, and the Democratic National Committee, which is administering the network,” explained a Feb. 2009 article in Politico, “Bauer’s new, unmatched legal power.”

In its Aug. 2011 Supplemental Environmental Impact Statement (SEIS), the State Department said that rail currently has the capacity to transport over 1 million barrels of tar sands per day to market.

“Even in a situation where there was a total freeze in pipeline capacity for 20 years, it appears that there is sufficient capacity on existing rail tracks to accommodate shipping…through at least 2030,” the SEIS explained. “[S]tatistics from the Department of Transportation,…conservatively estimated that the existing cross-border rail lines from Canada to the U.S. could accommodate crude oil train shipments of over 1,000,000 bpd (barrels per day).”

As a case in point, BNSF is eager to see KXL fail, seeing it as an economic opportunity of epic proportions for its rails.

“We’re very concerned this has flown under the public’s radar,” Peter LaFontaine of the National Wildlife Federationtold Bloomberg in a May 1, 2013 story. “The public doesn’t seem to have the same sort of attention for pipeline expansions as they do for pipeline construction. But we’re talking about a lot of crude.”

Cashing in on Destructive Game of Tar Sands “Whac-A-Mole”

In a Nov. 2012 article on rail serving as an alternative midstream method to pipelines for tar sands, Grist Senior Editor Lisa Hymas described the situation as one akin to a game of “Whac-a-Mole.”

“It’s like a big game of Whac-a-Mole, except what’s at stake isn’t a cheap teddy bear at Chuck E. Cheese but the health of the planet and civilization as we know it,” she wrote.

Rather than cashing in on juvenile toys with tokens gained from winning several rounds of Whac-a-Mole, though, Dunn and SKDK are gaining real-life tokens – fat wads of cash – cashing in on this high-stakes game of tar sands Whac-a-Mole.

Cleanup efforts are currently underway in four separate oil spills that have occurred in the last ten days.

On March 27th, a train carrying Canadian tar sands dilbit jumped the rails in rural Minnesota spilling an estimated 30,000 gallons of black gold onto the countryside.

Two days later a pipeline ruptured in the town of Mayflower, Arkansas, sending a river of Albertan tar sands crude gurgling down residential streets. And news is just breaking about a Shell oil spill that occurred the same day in Texas that dumped an estimated 700 barrels, including at least 60 barrels of oil into a waterway that leads to the Gulf of Mexico (stay tuned for more on that).

This week a Canadian Pacific freight train loaded with oil derailed, spilling its cargo over the Northwest Ontario countryside. Originally reported as a leak of 600 liters, the CBC reported on Thursday that the estimated volume of the spill has increased to 63,000 liters.

The accelerating expansion of Alberta’s tar sands has North America’s current pipeline infrastructure maxed out and, as a result, oil companies have been searching for an alternative way to move their product to market. As lobbying efforts around the stymied Keystone XL and Northern Gateway pipelines intensify, oil companies have been quietly loading their toxic cargo onto freight trains.

There has been a marked boost in the rail transport of crude in the last three years as new extraction techniques increase production in the tar sands. According to Reuters, “U.S. trains carried 233,800 carloads of crude oil in 2012, more than double the 65,800 carloads transported in 2011 and dwarfing the 29,600 in 2010, according to figures from the Association of American Railroads.”

Meanwhile the Canadian Pacific Railway’s crude oil volumes have skyrocketed from 2,800 carloads in 2010 to a staggering 53,000 last year. The company hopes to increase that number to over 70,000 this year.

Most, if not all, advocates of pipeline transportation will argue that the growing use of rail transport emphasizes the urgent need for pipelines. Pipelines are commonly touted as a more reliable mode of fuel transport than rail.

Pipelines, as the story goes, are safe.

Unfortunately for pipeline proponents, last week’s pipeline rupture in Arkansas is no anomaly in the history of US pipelines. In fact, pipelines have made a pretty consistent mess throughout the States for the last 20 years. One thing has changed, however: those messes are getting more expensive to clean up.

The U.S. Department of Transportation’s Pipeline & Hazardous Materials Safety Administration (PHMSA) is responsible for reporting and recording all “significant pipeline incidents” which are all incidents exceeding the cost of $50,000 (in 1984 dollars).

In terms of property damage PHMSA records indicate that the 20-year average (1993-2012) cost of significant pipeline incidents is over 318 million dollars, the 10-year average (2003-2012) cost is over 494 million dollars the 5-year average (2008-2012) cost is over 545 million dollars and the 3-year average (2010-2012) cost is over 662 million dollars.

The cost of cleaning up after pipelines just keeps getting more expensive.

Over the last 20 years, pipeline incidents have caused over $6.3 billion in property damages. On average during this time period there were more than 250 pipeline incidents per year, without a single year where that number dropped below 220. During that time, more than 2.5 million barrels of hazardous liquids were spilled and little more than half of those spilled amounts were recovered in cleanup efforts.

One of the factors contributing to the cost of cleanup is the introduction of Alberta’s diluted bitumen to southern markets (The most expensive year on record is 2010 when Enbridge spilled 3.3 million liters or 877,000 gallons of dilbit into Michigan’s Kalamazoo River).

Companies eager to move Canadian dilbit south to refineries and export facilities have been jimmying an aging pipeline infrastructure to handle the more corrosive substance and there is currently no federal oversight to monitor this process.

ExxonMobil’s sixty-five-year-old Pegasus pipeline that ruptured last week was one such retrofitted line. Built in the late 1940s, the old winged horse of a pipeline was reversed in 2006 in order to carry Canadian dilbit to the Gulf Coast via Illinois at a 50 percent increased capacity. The burst line sent a river of at least 84,000 gallons of dilbit running down residential streets in Mayflower and into nearby wetlands.

The exact cause of the pipeline rupture is still unknown.

Many of the major pipeline operators – like Exxon, Enbridge and TransCanada – have been cited for lax inspections, shoddy emergency preparedness, and ineffective spill management and response. Both Exxon and Enbridge have been told their actions in the immediate hours after pipeline ruptures have made spills worse than necessary.

NPR reports “more than half of the nation’s pipelines were built before 1970. More than 2.5 million miles of pipelines run underground throughout the country.”

Debbie Hersman with the National Transportation Safety Board told NPR, “100 percent of the accidents that we’ve investigated were completely preventable.” In many cases companies performed inspections and discovered cracks and corrosion in the line but did not perform repairs before accidents occurred.

In an interview with Reuters, John Stephenson, vice president and portfolio manager at First Asset Investment Management in Toronto described these events as “not good for producers…not good for Canadian oil going south…not good for Keystone.”

But added, “the reality is this oil is going to make it south of the border, quite likely by rail or one of the other pipelines across the Canadian-US border, so I see it as a short-term hiccup at worst.”

Yet even a cursory glance at the history of pipeline accidents in the US shows what is happening in Arkansas is no ‘hiccup’ and will bear no ‘short-term’ consequences. At least, not for the residents of Mayflower.

A tax loophole exempting tar sands pipeline operators from paying an eight-cent tax per barrel of oil they transport in the US is costing the federal Oil Spill Liability Trust Fund millions of dollars every year. With expected increases in tar sands oil production over the next five years, this loophole may have deprived US citizens of $400-million dollars worth of critical oil-spill protection funds come 2017.

According to a report by the USNatural Resources Committee the federal government pays for immediate oil-spill response from the Liability Trust Fund which is supported by an excise tax on all crude oil and gas products in the US.

But in 2011 the Internal Revenue Service exempted tar sands oil from the tax, saying the substance did not fit the characterization of crude oil.

This exemption has come under scrutiny this week after Exxon Mobil’s Pegasus pipeline ruptured in Mayflower, Arkansas, releasing 300,000 litres of tar sands oil and water into a residential neighbourhood and surrounding wetlands. Because the line carried tar sands-derived oil from Alberta, Exxon was exempt from paying into the spill liability fund for the corrosive fuel’s potential cleanup.

The Pegasus pipeline was built in the 1940s to carry regular crude north from the Gulf Coast. In 2006, Exxon reversed the flow of the 1300 kilometre line in order to transport tar sands diluted bitumen from Illinois to the coast.

According to the Natural Resources Committee, “the spill response fund is currently at risk from running out of money because of the combined costs of BP’s Deepwater Horizon spill and Enbridge‘s Kalamazoo spill of tar sands oil…And Enbridge could still file a claim against the fund to recoup some of its costs because the company has spent well over the liability cap of $350 million for such spills.”

The Enbridge disaster in Michigan’s Kalamazoo river has cost over $820 million, making it the most expensive onshore cleanup in US history.

Enbridge, the company currently vying to build a 1172 kilometre-long pipeline from Alberta to the British Columbia coast, currently has no spill-response plan – for either onshore or offshore spills – prepared for the project.

During cross-examination in the Northern Gateway Pipeline hearings in BC, Enbridge admitted they will have no spill response plan until six months before the proposed tar sands line will begin operation.

An investigation in the Enbridge Kalamazoo disaster found the company – due to “pervasive organizational failures” – improperly respond to the pipeline breach. The US National Transportation Safety Board likened Enbridge employees to the Keystone Kops – a clumsy, incompetent troups of cops from the silent films of the early 20th century.

The estimated cleanup cost for conventional oil run at about $2000 per barrel of oil. Tar sands diluted bitumen cleanup is estimated to cost an average $29,000 per barrel of spilled oil.

The Oil Spill Liability Trust Fund was established in the wake of the Exxon Valdez oil spill, when the enormous costs of oil spill recovery were first understood on a grand scale, to ensure adequate cleanup funds were available to protect local residents and ecosystems.

As Climate Progress reported in 2010, Exxon refused to shoulder the cost of cleanup in the Valdez, where more than 11 million gallons of crude oil contaminated almost 3000 kilometres of shoreline.

“Exxon fought paying damages and appealed court decisions multiple times, and they have still not paid in full. Years of fighting and court appeals on Exxon’s part finally concluded with a U.S. Supreme Court decision in 2008 that found that Exxon only had to pay $507.5 million of the original 1994 court decree for $5 billion in punitive damages. And as of 2009, Exxon had paid only $383 million of this $507.5 million to those who sued, stalling on the rest and fighting the $500 million in interest owed to fishermen and other small businesses from more than 12 years of litigation.

Twenty years later, some of the original plaintiffs are no longer alive to receive, or continue fighting for, their damages. An estimated 8,000 of the original Exxon Valdez plaintiffs have died since the spill while waiting for their compensation as Exxon fought them in court.”

The US is facing a dramatic increase of tar sands oil imports. As the National Resource Committee estimates, production in the Alberta tar sands is projected to rise to over 2.7 million barrels per day in 2017. The tar sands industry projects figures as high as 5 million barrels per day in 2030 and 6 million per day in 2035. Currently approved projects have the capacity to produce 5.2 million barrels per day.

“Tar sands is already the dirtiest, riskiest oil around. It shouldn’t get a free ride from the U.S. taxpayer when it comes to paying into this vital spill response fund,” said Rep. Markey, the Ranking Member of the Natural Resources Committee. “Oil companies already receive outrageous tax subsidies that total billions of dollars and there is no defensible reason for this oil spill free ride to be added to that dubious list of loopholes.”

Regardless of how many barrels of tar sands oil will be traversing US soil, none of them should be exempt from spill liability taxes. If anything, corrosive diluted bitumen should be taxed more for the inherent dangers it present to local ecologies and communities during its production, refining, and transport.

Rarely do we meet those who have made careers selling us lies. Consider the oddball doctors who took tobacco money to deny a link between cigarette smoking and cancer, or the handful of scientists who take oil and coal money to discredit global warming science, or the people who have done both.

Last week, students in Wisconsin and Michigan stepped up to such an opportunity when CFACT Campus, the student arm of a well-known cabal of fossil fuel apologists, hosted climate change denierWillie Soon at several campus events around the country.

While this approach is often tried out by pouting children when they don’t get their way, lately it also seems to be the mantra of Republican lawmakers right here in Pennsylvania.

Pennsylvania Senate Majority LeaderDominic Pileggi recently introduced a bill to change the way our state allocates its Electoral College votes. Instead of the current system, which guarantees that Pennsylvania is relevant and that our issues are heard, his plan would cause our state to be side-stepped by presidential candidates in favor of less diverse states. His scheme is a blatant attempt to shift election results for partisan gain and diminish the influence of African-Americans and others by making us irrelevant to the national conversation. It’s a power grab, plain and simple.

It’s also an attack on the democratic process. From election-rigging schemes to attempts at restricting ballot access in marginalized communities, I am growing tired of these attacks on our democracy. As our first African-American president faced reelection last year, here in Pennsylvania our legislature decided that it wanted fewer African-Americans to vote. The voter ID law that they passed would have made it harder for 750,000 Pennsylvanians to vote, including a full 18 percent of Philadelphia voters. That law would have hurt Pennsylvanians from all walks of life, but like most of the new voting restrictions across the country, it was targeted squarely at voters of color. Although our state Supreme Court temporarily blocked the law from going into effect, it still threatened to deter voters from going to the polls. But not for long!

02-27-2013 Ecowatch

Laurel Peltier

In 1989, Dusty and Tamera Hagy bought 81 rural acres in Jackson County, West Virginia. Twenty-one years later, the Hagys sued four natural gas drilling firms alleging the natural gas wells drilled on their property in 2008 contaminated their drinking water and caused physical harm.

The Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect “federal legal exemption’s framework” that when combined with lax or absent state regulations and the legal system’s high costs, inherently approves of citizen collateral damage with no restitution.

The consequence of this framework is that the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.

Natural gas is a critical resource. Fifty percent of American residences use natural gas. Natural gas is seen by some as a bridge fuel essential to the U.S.’s strategy to gain energy independence from foreign oil imports. Yet we must ask ourselves: Is the current fracking system one we should support? Are changes needed to level the playing field for all parties involved in fracking? Can fracking be done safely?

The land man cometh

Dusty and Tamera Hagy unwittingly fell into the fracking trap the day they bought their land in 1989. “We loved our 81-acre property, it was our life. We had paid off the mortgage and spent a lot of money fixing the place up. We raised our two boys there, buried our animals there and were planning to give our boys some property,” said Dusty Hagy.

Mineral rights, fracking chemicals and natural gas federal environmental laws were all Greek to the Hagy family before a pleasant Equitable Production Company representative visited the couple in October 2007.

Equitable Production Company’s representative informed the Hagys that four natural gas wells were soon to be drilled on their property about 1,000 feet up the hill from their home.

In West Virginia, surface land ownership is separate from mineral rights. Mineral rights are the portion of the profits received from minerals extracted from land. Another party owns the Hagy property’s mineral rights which were granted hundreds of years ago. The Hagy family receives no gas royalties and didn’t sign a formal gas leasing contract, though, they did sign plenty of “papers” believing they did not have a choice.

Fracking starts – trucks, noise, explosions, and chemicals

On Nov. 11, 2007, trucks, back hoes, tree cutters and workers converged on the Hagy property uphill and upstream from their home. Equitable outsourced the drilling to BJ Services and for the next six months the holler, or enclosed valley, was flattened for a six-acre natural gas well pad.

Tamera Hagy describes life during the drilling and fracking: “It was nothing like what I had expected. This was a huge operation that lasted day and night for eight months. Trucks went up and down the road 24/7. The smell of fumes would make you sick. One night we heard something like a giant drill bit drilling and vibrating under our house.”

Dusty visited the well pad often and learned from the job crew that this fracking job wasn’t going smoothly. One worker mentioned that they had hit a lake of water and were moving the rig. Another worker shared in this audio tape #3 how the cement casing “went bad” and was re-cemented. Of the four open and lined fracking wastewater ponds, one overflowed and later broke, spilling the fracking wastewater into the nearby creek that flows from the well pad past the Hagy family’s home. In March 2008, Dusty noticed that another fracking pond’s wastewater was emptied by hose into the woods. After finding foam and oil slicks in the creek next to their well, and then when their large pond turned green, the Hagys knew something wasn’t right.

Dusty lodged a formal complaint with the West Virginia Department of Environmental Protection (DEP) on Nov. 17, 2008. DEP records reveal a gas inspector visited the site at the well’s completion and issued no violations. DEP records also reveal the three natural gas wells began producing gas in July 2008 and the wells today continue to produce about 3,000 m.c.f. of gas per month.

Be careful what you sign

As Dusty describes the Equitable representative, “We liked him, and he was a nice enough guy in the beginning and we believed everything he told us at face value.” Equitable said the natural gas drilling was simple and would cause minimal damage on 1.5 acres. When Dusty asked if fracking used anything dangerous, they were told that only water and sand were used, no chemicals were ever mentioned. A water test prior to drilling supported the Hagy’s belief that their water well was clean and safe.

On Oct. 22, 2007, Equitable paid the Hagys $19,000 to cover surface damages to their land and trees because building a well pad trashes the landscape. “I believed the Equitable guy when he said the check was just for surface damages. My property was valued at nearly $200,000. It was stupid to sign that paper, I should have gotten a lawyer,” explained Dusty. Because the well pads used more than the original 1.5 acres, Equitable paid the couple another $10,000 for damage on an additional four acres.

Later in 2008, Dusty learned the papers they had signed to receive the payments were actually damage release contracts attempting to exempt Equitable, and all drilling providers, from any and all damages associated with the drilling. “Other than shooting the family dog, this ‘contract’ covered near everything,” said Dusty Hagy.

Family gets sick—headaches, rashes and vomiting

The family drank, bathed and cooked with their well water from November 2007 to November 2008 during the gas well drilling and fracking. Ironically, the Hagy family had boasted about their pristine well water and even after their adult sons moved out, the boys brought jugs of well water back to their homes.

The Hagys began to notice changes to their water in early 2008. Their water volume was dropping and the water’s color changed from clear to brown. Often black particles were floating in water drawn from their well. Despite overwhelming evidence otherwise, Equitable never reported any issues that would impact the Hagys’ well water.

Adding to the changing water quality, both Dusty and Tamera said they were oddly tired, and woke up with “bad headaches, like a hangover.” Both smelled an “acid” odor in the house and their eyes would burn in certain rooms.

The Hagys didn’t put “two plus two together” until their youngest son went to his family doctor in Columbus, Ohio in October 2008. Their son had complained of nausea and was spitting up blood. His doctor treated him for acid reflux, a disorder he’d never experienced before, and suggested he stop drinking his parent’s well water. The son’s symptoms disappeared soon after he discontinued drinking his parent’s well water.

Based on their complaints, Equitable re-tested the Hagy water well on Nov. 8, 2008 and their water had clearly changed. The turbidity, or murkiness, was six times greater post drilling (0.5 to 3.2) and iron, manganese and calcium levels increased significantly (Dusty replaced one hot water heater during this time due to calcium build-up).

Water tests conducted later also revealed arsenic, lead, barium and Bis(2-ethylhexyl)phthalate, an organic compound linked to fracking wastewater. The radon levels of the Hagy well were 1,233 pCi/l with the maximum contaminant level set at 300. When those radon levels were compared to area wells, the Hagy’s radon in their drinking water was markedly higher than eight local U.S. Geologic Survey wells in the area.

However, the water tests conducted before and after drilling were limited and included no tests for known fracking chemicals or volatile organic compounds.

In November 2008, Equitable told the couple, “the water was bad” and to stop drinking the well water and the company began supplying bottled drinking water.

On Jan. 13, 2009, Dusty and Tamera vacated their home and have never moved back. “We thought we were going to die,” said Dusty Hagy.

Relations with Equitable were getting tense; Dusty even began recording phone conversations. Repeated requests for a list of the chemicals used in fracking went unanswered.

Dusty Hagy assumed Equitable would fix the water issue based on phone conversations (audio tape #1) with his Equitable representative who stated on the phone:

“ … for whatever reason the water’s been affected because of our drilling process. But the horizontal portion of it I don’t think had anything to do with it. Something we did had something to do with it. We have done something to the water, and no one was doubting that, but it wasn’t the horizontal part. I’m not doubtin’ that fact and I don’t think anybody’s doubtin’ that, the horizontal portion wouldn’t affect it.”

Equitable offered to drill a new water well which the family declined because they believed the aquifer itself was contaminated. This belief stemmed from a neighbor’s claim that 30 of his animals had died in 2008 during the gas drilling. Plus, Equitable tied any restitution to the couple signing an non-disclosure agreement, or gag order, meant to silence the Hagys and negate any future claims.

Hagy family sues drilling firms

As this phone conversation (audio tape #3) with Equitable reveals, once the family sought legal representation in March 2009, all contact with Equitable stopped. Bottled water deliveries and hotel payments stopped. While the couple searched for a rental home, they lived in their un-heated camper. On a positive note, once they vacated their home, their negative health symptoms dissipated.

The Hagys sued Equitable Production Company, BJ Well, Halliburton and Warren Drilling in October 2009. In short, even with the taped calls, drilling records, photos, videos and water tests, the Hagys’ lawsuit was “dismissed” in August 2012. Judge Goodwin’s opinion stated, “The case presents no genuine issue of materials fact for a jury to determine.” The lawsuit is in the appeals process and the litigation costs to date are $175,000.

How does this happen?

Though the Hagys’ lawsuit appears to provide evidence of water contamination, their dismissed lawsuit supports the claim, “There are no known cases of drinking water contamination from fracking,” often touted by pro-fracking groups.

This claim isn’t true, at least 4 confirmed cases of water contamination exist:

The natural gas industry is exempted from seven major federal environmental laws. These laws in their simplest forms are intended to protect people, places, water and air. The U.S. Environmental Protection Agency (EPA) is tasked with enforcing these laws. Because the natural gas industry isn’t regulated by the U.S. EPA at the federal level because of the legal exemptions, natural gas drilling is regulated on a state-by-state basis.

The chart below outlines the seven federal environmental laws exemptions, with many exemptions dating back decades.

The latest three exemptions were strategically written into the 1,500 page Energy Policy Act of 2005 and are now infamously named the “Halliburton loophole.” These three short paragraphs focused on eliminating water pollution oversight and also eliminated the strict environmental reviews that federal projects must undertake.

When these exemptions are combined, the benefits to natural gas industry are: no federal EPA oversight therefore pushing fracking regulation to the state level, no scientific testing, no environmental studies, no health and geologic studies and no liabilities for drillers of chemical releases into waterways and air.

The 2005 Energy Policy Act’s strategy was to provide the U.S. with “an abundant, domestic and affordable sources of fuel.” Since 2005, the gas industry has been unhampered by federal regulations and the newer shale gas drilling has grown quickly; U.S. natural gas from shale reserves has grown from one percent to 35 percent of the U.S. supply. This new supply of 8.5 trillion cubic feet of gas has forced natural gas prices down by 50 percent, even spurring coal-based electrical plants to convert to natural gas.

The coffin nail: Toxic Release Inventory exemption

The least known exemption though, the 1986 Toxic Release Inventory of Emergency Planning and Community Right-to-Know Act, may offer the natural gas industry the biggest shield from liabilities and the greatest obstacle for parties alleging fracking water contamination.

In response to the Bopal, India disaster, when Union Carbide released a harmful gas into an urban area which killed more than 20,000 people, Congress required industries to list harmful chemicals on the Toxic Release Inventory to the EPA. The EPA collects and then disseminates that information to the public and local governments.

Yet, oil and gas companies were exempted from the Toxic Release Inventory, therefore chemical disclosure is different for each of the 29 fracking states. To boot, shale gas production, or fracking, is concentrated in relatively gas-friendly states: Texas, Louisiana, Pennsylvania, Arkansas, West Virginia, Colorado and North Dakota, listed in order of gas production volume.

According to an in-depth National Resources Defense Council report which compares today’s hodgepodge of state-level fracking regulations, no state requires full chemical disclosure. Even new regulations in Texas, the largest shale gas producer, require chemical reporting but do not require “proprietary” chemicals to be listed which can account for 50 percent of the chemicals used in one fracking. The report also concludes that state reporting is inconsistent and significant portions of data are missing altogether.

Adding to the lack of chemical disclosure, only two states (West Virginia and Colorado) inform residents about new wells before drilling. This means that in 27 states, residents are not notified of new drilling, making it impossible to conduct comprehensive (and expensive) water testing before the drilling.

How exemptions play out in the law-can you prove what you drank?

In 2007, Equitable wasn’t legally required to disclose the chemicals used in the fracking, therefore no doctor, no person or group knew what chemicals to test for or what caused the foam in the creek, the color changes in the pond or the compromised water well.

Though water tests revealed the Hagy property drinking water had changed since the drilling had occurred, the tests were not apples-to-apples comparisons. During the lawsuit’s evidence discovery process, the natural gas firms finally furnished the list of chemical used on the Hagy property which verified the fracking chemicals used weren’t “just water and sand,” as quoted by the Equitable contact.

The absence of verifiable chemical data is displayed in Judge Goodwin’s opinion and order to grant a motion for Summary Judgement, which in layman’s terms means the Hagy lawsuit was dismissed. The burden of chemical exposure proof was placed on the plaintiffs, “to demonstrate amount, duration, intensity and frequency of chemical exposure.” A catch-22.

Gas leases and contracts: The devil’s in the fine print

Adding to the chemical disclosure catch-22 is that most gas leases heavily favor natural gas drillers. In 2011, The New York Times analyzed more than 110,000 shale gas leases and concluded; over half of gas leases provide landowners no restitution in the event of harm, most exclude any explanation of potential harm and a majority of leases include automatic contract extensions that require no landowner approval. Natural gas wells can produce for decades and gas lease contracts can be automatically renewed in perpetuity. Many leases include clauses mandating that damage disputes be heard in arbitration outside of the legal system.

The door-to-door leasing agents who represent gas drillers, a.k.a. landmen, are tasked with getting natural gas leases signed by landowners. Feedback from many landowners is that landmen are very persuasive, personable and often mis-represent facts. These revealing talking pointspages were reportedly found by a Ohio homeowner who had been visited by a West Bay Exploration’s leasing agent. The talking points, marked confidential, give sales agents advice to, “not talk about the anti-fracking documentary Gasland, to not discuss chemicals or fracking and to speed up the lease signing before people think about the drilling.”

Many natural gas leases border on predatory in nature as it appears the gas leasing process relies on the ignorance of rural, landowners to enter into binding, private contracts with natural gas drillers.

The Hagys claim they were absolutely unaware they had signed a damage release waiver, twice even. “The Equitable representative sat right on my porch and said the cash was a small payment for the trees and land damage. It wasn’t until November 2008 that I even found out I supposedly had signed away any rights,” said Dusty.

These two damage release forms inadvertently signed by the Hagys have reared their ugly heads during the lawsuit process as another reason Equitable and BJ Services claim they are not liable for any water, health or property damage; the companies claim the Hagys signed away any rights to liabilities and restitution.

Suing a gas company—expensive and grueling

“Fracking has been the tragedy of the commons—freedom to a common, brings ruin to all,” according to Maxwell Kennerly, a trial lawyer at The Beasley firm in Philadelphia. Legally it’s been impossible for plaintiffs to precisely pinpoint exactly what happened underground or link exact chemicals to a situation when those chemicals aren’t divulged and the drilling process isn’t accessible. Any lawyer taking these cases has to be prepared to put their own money and resources on the line to be a trailblazer.”

The first legal team hired by the Hagy family in 2009 dropped the Hagys’ case one year later. During that year the family lost valuable time in conducting water tests and gathering evidence. Their current lawyer, Kevin Thompson, of the Law Offices of Thompson Barney in Charleston, West Virginia, has taken the case on a contingency fee basis. The Hagy family has paid no out-of-pocket expenses. The lawsuit’s litigation costs to date top $175,000.

Lastly, there is an emotional toll for using our legal system to get restitution; it’s a grueling process according to Dusty Hagy. “It’s been hell. For over two years, we’ve been reliving this awful experience. In the back-of-our-minds we realize this may be all for nothing. My wife and I feel we had our most important asset stolen from us, the drinking water that makes our property a place to live, not just 81 acres for animals. It feels like the whole system is stacked against us.”

Where are the Hagys?

Interestingly, the Hagys and 70 of their neighbors who live on a 5-mile stretch of Sugar Creek Road have petitioned Southern Jackson County Public Services to extend public water service to their homes at cost of $2 million. The project is on an 5-year waiting list and there is no guarantee it will ever be completed. According to Karl Vielhaber, general manager for the Southern Jackson County Public Service, the property owners have petitioned for municipal water because most claim their water wells are contaminated from gas drilling. Most of the homeowners haul water to their homes from a coin operated water source.

Dusty and Tamera have moved to a new property with a mortgage, and they still own their vacated property. Equitable’s three natural gas wells still produce gas today and may for years on the Hagys’ vacant property.

The winners and losers

A clear winner in fracking so far is natural gas industry. Fracking cases settled out-of-court provide critical benefits for the gas industry because the settlements include “gag orders” so that injured parties can not discuss the case and its contents. Financially, settlements reduce liabilities for natural gas firms by eliminating unpredictable jury awards. More importantly, settlements help the industry maintain their public relation’s campaign to the media, elected officials, the financial industry and the American consumer that natural gas drilling is clean and safe.

American consumers are also winners in the fracking story. According to the Energy Information Administration, residential gas prices are about 50 percent less than the 2008 natural gas price peak.

Fracking’s losers are the private landowners who have been negatively impacted by fracking and may or may not have received proper restitution. Collectively, the public loses as closed settlements shut down any learning, studies or analysis needed to create uniform industry best practices and build legal precedence for future cases.

Fracking regulations are slowly developing. The Obama Administration announced federal regulations mandating methane capturing at well sites. State legislatures are slowly developing new rules with Pennsylvania creating some of the toughest legislation over wastewater recycling and charging per well fees to pay for damages. But, as the Center for Energy Economics and Policy’s website and National Resourced Defense Council report illustrate, fracking regulation is complicated and convoluted.

What can you do?

Stories like this can often leave readers with an uneasy question: “What can I do?” Hear are a few ideas.

Contact your federal and state elected officials. Your state elected officials are key as fracking is exempt from federal regulation and it seems Washington is struggling to make any changes with pretty much anything. Sending a quick email to your state delegates and senator with a link to this post takes 30 seconds and alerts your elected officials that fracking is on your radar screen. Make your opinion on the current process known.

Choose a fracking group from below that matches your point of view and sign-up for their newsletters. Add them to your twitter feed or friend on facebook to keep abreast of new regulations and issues. If you’re a Flipboarder, add fracking to your list.

The groups below often include easy “call-to-actions” where your voice can be heard. Interestingly, all but a few people in these groups and grassroots organizations are volunteers.

I think it’s time for us to take a step back, and look at the big, ugly picture in front of us! The U.S. government has a huge spending problem, and its leaders are gambling away our generations’ and future generations’ taxpayer dollars on a over-bloated U.S. Defense Budget! Why is the U.S. spending more money on defense than half of the world’s industrialized nations combined? I think the U.S. expansion into Africa (AFRICOM), and its attempted expansion into CentralAmerica and South America, in order to preserve its lust for oil and world dominance is a clear indicator.

It is a clear indicator that the U.S. regime has one clear goal which is total global dominance leading up to the New World Order or One-World Government that nobody wants except for the most elite, wealthy weasels that already control world markets. Now those elitists want to dominate every aspect of human life! So much for freedom and human rights! Obama’s Executive Orders, and his secret “Executive Actions” which override any orders, are already stripping U.S. citizens bare of the Constitutional rights that were in place to protect them since the founding of America. Meanwhile, our polarized Congress is doing little to nothing to stop what I see as a dictatorial, totalitarian, authoritarian, Orwellian 1984-like society that is unfolding right in front of everyone! Voting for “the lesser of two evils” (Republicans vs. Democrats) is at an all-time high, every facet of our government has been overrun by CEOs, mega-corporations, Super-PACS, Wall St.‘s gambling addiction, and lobbyists shoveling corporate $money$ into our elected officials’ pockets!

What is our government’s wonderful solution to reducing “wasteful spending?” Voter-elected legislators want to cut Social Security, Medicare, Medicaid and food assistance which are the core programs holding together what is left of our once great nation! After all, that’s what Congress really wants in order to preserve their wealthy lifestyles handed to them by Corporate America! It’s not about you or us. It’s all about how much greed and power, the two most evil words in this world, our government can suck in before the entire U.S. economic system implodes and crumbles into a giant mound of useless paper money! The U.S. government will end up with nothing more than a vintage Monopoly game board with a “Go Directly to Jail” card for anyone who opposes its repressive regime.

I live in the beautiful state of Wisconsin, with the exception of the bone-chilling cold during January and February! One of my state’s senators sent me a letter informing me that, in short, mining here can be done safely with minimal environmental impact.

There is no such thing as “safe mining!” The two words when put together are polar opposites of each other. I like my idea better, so I emailed it off to him! You can do the same with all of your state’s elected officials, including your governor, by sending them a clear, resounding message that it is (way past) time to divest from dirty, finite energy and invest in cheaper, clean, renewable energy starting today! Our climate is screaming for help, and we can no longer let our legislators promote their hidden, greed-laden agendas!

Here is a copy of a brief letter that I just sent off to Senator Cullen:

Dear Senator Cullen:

There is no need for mining of any kind in the great state of Wisconsin where I was born and raised! Mining for finite, dirty energy sources is dangerous, unhealthy to the workers, and unhealthy to the rest of Wisconsinites, since there is always pollution runoff or overflow. This runoff or overflow is NOT properly regulated by the EPA or its WI branch!

We have a vested interest to divest from dirty energy and invest in clean, renewable energy sources such as wind, solar, hydro-electric and geothermal power. Our environment desperately needs this in order to avert catastrophic weather changes that are steadily increasing in numbers and intensity! For the sake of humanity and its future generations, please take mining off of Wisconsin’s energy table! We deserve better, cheaper energy alternatives, and most importantly, so do our children!